On June 5, 2007, the U.S. Environmental Protection Agency (EPA) and the
U.S. Army Corps of Engineers issued their long-awaited guidance
regarding the scope of Clean Water Act (CWA) jurisdiction following the
Supreme Court's decision in the Rapanos and Carabell cases. The Guidance
consists of numerous documents – the guidance itself, a memorandum that
outlines how the Corps and EPA will cooperate to implement the guidance,
a Q & A, an Approved JD Form, and an Instructional Guidebook on how to
fill out the JD Form. While the guidance document provides a general
outline of what may be considered jurisdictional, it is the
Instructional Guidebook that will likely provide the greatest level of
detail and insight into the overall on-the-ground implications. All of
the documents can be accessed on the Corps’ web page at

During the first six months implementing the guidance, the agencies will
invite public comments on case studies and experiences applying the
guidance. The agencies, within nine months from the date of issuance,
will reissue, revise, or suspend the guidance after carefully
considering the public comments received and field experience with
implementing the guidance.

The guidance, which is effective immediately, basically outlines three
scenarios into which any given area may fall, as follows:

· Swales and erosional features (e.g., gullies, small washes
characterized by low volume, infrequent, or short duration flow).

· Ditches (including roadside ditches) excavated wholly in and draining
only uplands and that do not have a relatively permanent flow of water.

· Waters, including wetlands, deemed non-jurisdictional by SWANCC.

Possibly “IN” Based On The Significant Nexus Test

· Non-navigable tributaries that are not relatively permanent (e.g.,
ephemeral tributaries which flow only in response to precipitation and
intermittent streams which do not typically flow year-round or have
continuous flow at least seasonally).

· Wetlands adjacent to non-navigable tributaries are not relatively
permanent.

· Wetlands adjacent to, but that do not directly abut, non-navigable
tributaries that are relatively permanent (e.g., separated from it by
uplands, a berm, dike, or similar feature).

The Significant Nexus Test

· The
water feature in question must have a demonstrated and documented
significant nexus to a traditional navigable water.

· A nexus is considered significant if the flow characteristics and
functions of the tributary and/or wetland significantly affect the
chemical, physical or biological integrity of the downstream traditional
navigable water.

· In assessing the relationship between ecological characteristics of
tributaries and their adjacent wetlands with the downstream navigable
waters, the agencies will include all “similarly situated” wetlands
adjacent to the same tributary (e.g., when it is determined that a
tributary and its adjacent wetlands collectively have a significant
nexus with traditional navigable waters, the tributary and all of its
adjacent wetlands will be considered jurisdictional).

· Hydrologic Factors (e.g., the volume, duration, and frequency of the
flow, the proximity of the tributary to a traditional navigable water,
the size of the watershed, average annual rainfall, etc.), and

· Ecological Factors (e.g., the potential to carry pollutants and flood
waters to the traditional navigable water, provision of aquatic
habitats, potential of wetlands to trap and filter pollutants, and the
maintenance of water quality within the traditional navigable water).

· To determine whether a subject water meets the significant nexus test,
one must complete an 8-page JD form. The form basically requires various
documentation, analyses and explanations as to why the agency asserts or
declines CWA jurisdiction.

In the end, for certain areas, the guidance will help to clarify what
areas can and cannot be deemed jurisdictional. At the same time, it will
subject other wet spots to what could be a lengthy and onerous process
to determine whether the federal agencies can regulate them, not to
mention the lengthy permitting process that will follow. While the
guidance suggest deadlines and timelines intended to ensure the process
is efficient, time will tell whether suggested timelines alone are
sufficient to meet this result.